Influenced or illegal?

No artist lives in a vacuum. All artists learn their art from the works and artists that preceded them. Painters study countless styles and techniques. Filmmakers track the shots, lighting and dialogue of older movies. And musicians develop their talents and tastes as they absorb various rhythms, melodies and arrangements.

In the art world, all of this makes sense. That’s how artists grow. They draw from others, process the materials, filter for what moves them and add their own twists. That’s how art evolves, but the process doesn’t always run so cleanly when it intersects with the law. Especially when there’s big money involved. For proof, you need look no further than the last year in pop music.

Plagiarism, lawsuits and the music industry

The New York Times recently dug into the eruption of lawsuits that followed a 2015 case in which Marvin Gaye’s family successfully sued Robin Thicke and Pharrell Williams for plagiarism. The jury in that case found that Thicke and Williams had borrowed too much of “Got to Give It Up” when they created “Blurred Lines.” Gaye’s estate was awarded $5.3 million.

But the award wasn’t the most notable aspect of the case. According to the Times, the real stunner was that Gaye’s family won the case with a “flimsy” musical connection. It appeared to lower the bar for plagiarism charges. “Influenced” works could count as “plagiarism.”

As the Times sees it, this opened the floodgates for other similarly flimsy cases. If the plaintiffs don’t need to show clear and direct links between their works and the works they claim are derivative, where does that leave the standard for originality? The answer appears to be “in peril.” We’ve just concluded a banner year for plagiarism lawsuits.

What is a derivative work?

The industry’s concerns center largely around the definition of derivative works. Copyrights protect creative works from unauthorized reuse, performance, alteration and distribution. They also limit others’ creation of derivative works.

When musicians use someone else’s copyrighted material in any of these ways, they can be sued for damages.

But certain things can’t be copyrighted. These include:

Processes

Procedures

Principles

Concepts

Ideas

This is where we may find some confusion. Does the similarity between two measures of music count as derivation? Even if they don’t match exactly? Or does it point toward a broader stylistic choice that lives in the world as a “concept” or an “idea”? You can copyright a song, but you can’t copyright the syncopated rhythms of disco.

Murky issues need clear guidance

Anytime you have $5.3 million at stake, you need to understand what makes a work derivative. But you don’t need to have $5.3 million at stake to want to make your case. Whether you want to protect your work or defend yourself from a frivolous lawsuit, you need to build from a solid foundation. In the end, the greatest difference between plagiarism and originality may be the impact on your livelihood.